Connick v. Thompson

by Kieran Healy on April 2, 2011

J.K. Galbraith remarked that conservatism was engaged in a long search for a superior moral justification for selfishness. But that quest may sometimes become boring, or perhaps too difficult. Not to worry, because occasions to be straightforwardly vicious are more easily found, if you have the taste for it. Its spiteful tone aside, in substance Connick v. Thompson seems to be a Lord Denning Moment for the U.S. Supreme Court. The conservative majority preferred to affirm an obvious wrong rather than face the appalling vista of a brutal and corrupt justice system. To be fair to the system, it’s worse than that. Once the initial wrongdoing came to trial a jury, the district court, and the 5th circuit (twice) all decided the other way. It’s only when we get to Thomas, Scalia, Roberts, Alito, and Kennedy that the system chose to further institutionalize prosecutorial immunity. Stitch-ups should be seamless: if someone could pull at a stray thread, the whole thing might unravel, after all.

{ 132 comments }

1

LFC 04.02.11 at 2:35 pm

Scalia’s concurring opinion deserves some kind of prize for sophistry, as it reaches a climax with his assertion that the “secret” of the case is that there was “probably no Brady violation at all” (oh, except for one prosecutor who doesn’t count because he did it knowingly, therefore training wouldn’t have helped, etc etc.). It is something of a mystery that someone so smart can be so stupid.

2

mw 04.02.11 at 2:40 pm

Appalling, but not surprising. If you were of a libertarian persuasion, you’d have read about this case at least a year ago. And you’d know, too, that conservatism has little to do with it — it’s not a conservative administration that’s busy torturing Bradley Manning and prosecutorial outrages are by no means exclusively found in ‘red’ jurisdictions or cheered on by conservatives. And Ginsberg, who made a strong dissent from the bench in this case, voted with the majority in favor of the government boot in Kelo and Raich — the second of which is helping to enable the Obama administration’s continuing crackdowns on medical marijuana dispensaries. Not a surprise I guess, for an administration with Joe ‘Rave Act’ Biden as second-in-command.

In the immortal words of Parker and Stone, “I hate conservatives but I really hate fucking liberals”. Some times, as in this case, it’s the other way around.

3

BGH 04.02.11 at 2:55 pm

On the “appalling vista,” echoes of Justice Brennan indictment of the Court’s “fear of too much justice.” McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).

4

MPAVictoria 04.02.11 at 3:06 pm

” It is something of a mystery that someone so smart can be so stupid.”

I think he knows his argument makes no sense. He knows, but he doesn’t give a damn.

5

Scott Lemieux 04.02.11 at 3:21 pm

Thanks for writing about this. I’m glad that Lithwick brought attention to the remarkable Scalia/Alito concurrence, which actually took a more authoritarian position than the defendants themselves.

6

dictateursanguinaire 04.02.11 at 3:23 pm

It’s truly difficult to understand the motivation behind this . I think Galbraith has it right, that clearly one doesn’t arrive here from conservatism/the ideology of limited gov’t but more uses it as a facade for, well, a pathological psyche. But even a more “law and order” conservatism still doesn’t make any sense – executing an innocent man in no way keeps “society working”; if anything, it erodes faith in the gov’t/society at large. Crazy.

Also, off-topic, but Professor Healy, being a UNC student I felt obliged to make some taunt about basketball but I’ll spare you.

7

Lee A. Arnold 04.02.11 at 3:43 pm

I have a theory that the source of this rightwing intellectual corruption is entirely emotional, and perhaps even quite specific. Commentators on “the Left” (such as it is) often put it down to “greed”, such as in the Right’s unalloyed support of Wall Street and so on, but I don’t think that makes a lot of sense in many individual cases. Instead what we are seeing, in so much of this, is the outcome of their hatred of abortion. Abortion is always the subtext, even when they aren’t directly speaking or writing about it, and perhaps are even momentarily unaware of its animating force. But for them, it has gotten to the point where they don’t care about other things. This could be the source of much of the sneering nihilistic rabidity of the Fox news anchors, for example. In other swords, what animates the contemporary Right is emotional, not intellectual. Any theory of the modern U.S. Right has to account for the fact that their intellectual arguments, upon inspection, often turn to dust. They surely don’t really care about Big Gov’t — indeed this Supreme Court decision would tend to enforce a more powerful and much more dangerous gov’t. Much more dangerous. This emotional subtext is likely to remain the predominating, and limiting, feature in the dynamics of U.S. politics until there is some sort of abreactive catharsis.

8

mw 04.02.11 at 4:03 pm

It’s truly difficult to understand the motivation behind this

I don’t find it hard at all. As in Raich and Kelo, I believe this was a strategic decision — ruling against a sympathetic defendant in order to preserve expansive government power. Ginsberg voted against Angel Raich (a medical marijuana patient with an inoperable brain tumor) in order to preserve a broad interpretation of the commerce clause. I expect that Scalia and Thomas voted against John Thompson out of fears of prosecutors being hamstrung by lawsuits.

9

Davis X. Machina 04.02.11 at 4:04 pm

It’s truly difficult to understand the motivation behind this

Look at it from the fan’s point of view. You’re not interested in consistency. You’re not interested in what happens when the shoe goes on the other foot. You’re not interested in anything other than winning.

Throw away your Federalist Papers and get a big foam “We’re #1″ finger. If you’re a Hillel fan, you can even stand on one leg while you wave it. That’s the whole of the Law, and the prophets.

The dead Lombardi bids fair to do from beyond the grave what a living Jeff Davis, a living V.I. Lenin, or a living Stalin, or a living Hitler could not do — destroy the republic. Oh, and Al Davis, too.

10

Barry 04.02.11 at 4:24 pm

dictateursanguinaire 04.02.11 at 3:23 pm

” It’s truly difficult to understand the motivation behind this . I think Galbraith has it right, that clearly one doesn’t arrive here from conservatism/the ideology of limited gov’t but more uses it as a facade for, well, a pathological psyche. But even a more “law and order” conservatism still doesn’t make any sense – executing an innocent man in no way keeps “society working”; if anything, it erodes faith in the gov’t/society at large. “

Not if it becomes normal. The whole point here is blindingly clear – when the government does a right-wing act, it is beyond question or reproach.

11

Andrew 04.02.11 at 4:49 pm

Well… I don’t think the issue in the case is really simple, or that the difference in opinions can be boiled down to Thomas and Scalia being “mean” and heartless, or unwilling to face injustice in the legal system, and Ginsburg being empathetic and courageous.

The issue is “how obvious” the need for training of govt employees to avoid conduct that violates constitutional rights must be for the municipality to be sufficiently aware of the need such that its failure-to-train employees constitutes a conscious disregard for those rights that causes the commission of the constitutional violations at hand.

This kind of claim has always been difficult to win. Usually one would have to show either that there is a history of constitutional violations resulting from a failure to train, and that the municipality’s refusal to change its training in spite of that pattern constitutes deliberate indifference – or that the need was just so obvious that the municipality didn’t need a historical pattern to know training was necessary.

The classic hypothetical used to illustrate the “so obvious a pattern is unnecessary” is the need to train police officers on the constitutional limits of the use of deadly force. Failure to do so is virtually certain to result in officers using their firearms in violation of a person’s constitutional rights.

So the bar is set quite high. It’s not just that the municipality must know that additional training would be helpful – it’s the type of situation where the municipality is handing out loaded guns to officers for use in confrontations with others. The need must be really obvious. We don’t need to wait for bodies of fleeing criminals to start showing up.

Is it just as obvious that a prosecutor would require additional formal training on disclosure requirements, when he is already made aware of the existence of the requirements, has the training and obligation to be fully educated in them, and is working in an area of the law where such disclosures will be a frequently confronted question? No, it’s not.

Should this be considered sufficiently obvious? That’s a hard question, and Ginsburg makes a very strong argument to that end. Also strong though is the countervailing consideration that if you do consider this to be sufficiently obvious – and the district court did seem to adopt a fairly broad standard – you’ve moved much closer to allowing governments to be vicariously liable for the acts of their employees, which is a result the courts in this area have long since rejected.

12

Scott Lemieux 04.02.11 at 5:05 pm

Also strong though is the countervailing consideration that if you do consider this to be sufficiently obvious – and the district court did seem to adopt a fairly broad standard – you’ve moved much closer to allowing governments to be vicariously liable for the acts of their employees, which is a result the courts in this area have long since rejected.

But you’re ignoring some rather important context here, which is that the Court has already granted absolute immunity to the employees. Shouldn’t this require more attention on the part of the administrators? Or do you agree with the Five Horsemen that nobody in the DA’s can ever be held liable for even the grossest civil rights violations?

13

Davis X. Machina 04.02.11 at 5:10 pm

The relevant case is Alphonse v. Gaston.

14

Paul Campos 04.02.11 at 6:44 pm

What’s notable here is not so much the result — there are after all respectable arguments for making it very difficult to sue the government for prosecutorial misconduct — but rather the obvious relish that Thomas and Scalia take in their conclusions. I suggest one reason for the otherwise inexplicable pleasure they seem to get in leaving someone like Thompson with no civil remedy for the wrongs committed against him is that the sheer brutality of their conclusions re-affirms for them the supposedly autonomous character of legal reasoning. As Douglas Hay put it in another context:

“When the ruling class acquitted men on . . . technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”
— Property, Authority and the Criminal Law, in Albion’s Fatal Tree (E.P. Thompson ed.)

http://www.thedailybeast.com/blogs-and-stories/2009-08-18/scalias-death-row-lunacy/

15

ben w 04.02.11 at 6:57 pm

When I got to this part of Lithwick’s article:

In the 10 years preceding Thompson’s trial, Thomas acknowledges, “Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office.” Yet somehow this doesn’t add up to a pattern of Brady violations in the office, because the evidence in those other cases wasn’t blood or crime lab evidence. Huh?

(That’s supposed to be blockquoted, and I am informed that I can use the <blockquote> tag, but it doesn’t show up blockquoted in preview—we’ll see!) I wondered why the court even bothers documenting the supposed reasoning on which it supposedly relies. This isn’t even specious. No one has the power to call Thomas on putting down arguments that would shame an imbecile, so one the one hand, sure, why not put them down? He’s not going to get a bad grade. But on the other hand the argument doesn’t matter, so why not just present the conclusion and have done? It would be less insulting and more honest.

16

ben w 04.02.11 at 6:58 pm

Oh, that’s amazing. That’s just amazing.

(a) Blockquoted text doesn’t show up as such in preview, but does in the actual comment.

(b) If you write out a tag using proper escapes, you know, ampersand ell tee semicolon tag-name ampersand gee tee semicolon, it gets interpreted as if you meant to use the tag itself.

Let’s test. <em>this text by rights should not be emphasized.

17

ben w 04.02.11 at 7:02 pm

&lt;em&gt;What about this text, which leads with ampersand-amp-semicolon-ell-tee-em-ampersand-amp-semicolon-gee-tee-semicolon? Will it show up with a literal “em” tag in front?

18

ben w 04.02.11 at 7:02 pm

(Sorry, Kieran.)

19

Kieran 04.02.11 at 7:05 pm

Sorry, ben. Comment previewing has been a problem for a while.

20

David Kaib 04.02.11 at 7:29 pm

For some time, legal progressives have largely been playing defense. Cases like these are a reminder that that strategy needs to change. The push back needs to be something more than ‘this latest outrage is outrageous.’

Due process has to mean something more than the sum of precedents we are presently defending from conservative attack. No state has a legitimate interest in convicting someone without due process.

These problems (i.e. enacting punishment without justification) are obviously not limited to this context – similar disregard for first principles can be found in the immigration detention context, terrorism cases, death penalty, and on and on. We cannot effectively fight back until we make the connections across these different issues.

21

mpowell 04.02.11 at 8:01 pm

I really don’t understand arguments like Andrews. I understand the words written down, I just don’t understand what the writer is thinking. So we have a really high burden to demonstrate municipal liability. Okay, that’s interesting. But what are the consequences regarding a DA’s office? Well, it turns out that can mean that the attorneys can engage in the most horrendous civil rights violations pretty much continuously and even after their misconduct has been exhaustingly detailed, nothing can be done about it. Hmm. Maybe we have a problem here. Maybe if we don’t do something about it, constitutional rights of citizens will be consistently and flagrantly violated. The courts in the last half century recognized that democratic liability was not sufficient to ensure that the terms of the constitution were being obeyed by local jurisdictions. This makes sense. As a result, they developed legal rules as part of a strategy for discouraging constitutional rights violations. And they held that this was mandated by their obligation to uphold the constitution.

Now we have the conservative court today. Obviously these 5 members (and particularly 4 of them), do not really believe that part of their duty is taking steps to insure that citizens constitutional rights are not violated. So things like adopting legal principles that will insure that the Brady rule might actually be enforced in most jurisdictions is not a good idea. Okay, but then that’s the philosophy you have to defend to defend this decision. You can’t hide behind, “well the burden is just very high and that’s how it is”. If the burden is so high that there is no legal remedy for the behavior of the Connick’s office (or legal means of discouraging that behavior), then you need to adjust the burden. Or defend the proposition that the court has no business interfering in local jurisdictions power to violate citizens constitutional rights.

22

mpowell 04.02.11 at 8:05 pm

Kaib,

I want to emphasize my agreement with your position (my last comment was cross-posted). There is a major problem with sitting back and saying, well, this is what precedent defines due process as. No!!! Constitutional rights have a substantive meaning that the courts, and especially the Supreme Court, are obligated to defend in part by actively discouraging government violation of those rights. Unfortunately, we are going to get nowhere with the current membership of SCOTUS.

23

Anderson 04.02.11 at 8:10 pm

This case is a particularly obnoxious example of justice wearing, not a blindfold, but blinders. I live in Miss., and the reputation of the Orleans Parish D.A. office stinks for a radius of several hundred miles. Within the U.S., only the NOLA police match them for scary disregard of fundamental human rights.

P.S. — Thompson’s being black is not irrelevant to this story, or perhaps even to the SCOTUS outcome.

24

eeyn524 04.02.11 at 8:56 pm

mpowell – It’s true that the court appears to be closing off any possibility of a legal remedy for what was done to Thompson, and if the SC majority felt that there was a more appropriate remedy they could have thrown a sentence or two suggesting what that remedy might be.

It’s also fairly clear just from what’s mentioned in the opinion that Connick and his prosecutors were behaving despicably and most likely intentionally, on a continuing basis for years. Connick even admitted that he’d been indicted previously for this type of violation.

However, the lawsuit that made it to the SC didn’t allege the obvious: that the prosecutors were a bunch of scumbag lawbreakers. The lawsuit instead alleged that the prosecutors were presumably honest people who would have respected Brady rules if only they’d been properly trained. I don’t believe that, and I’m guessing that you don’t either. I understand why Thompson’s lawyers did it that way – it was probably the only shot at getting decent compensation for their client. But it’s a weak claim – the fact that Deegan made a deathbed confession about hiding the evidence is a clear indication that he knew damn well that he’d violated the law.

I do believe that Thompson should get his money as compensation, but let’s not overestimate the deterrent/enforcement effect if this case had gone the other way. I doubt that someone like Connick would feel deeply punished and chastened knowing that the taxpayers forked over $14M due to his behavior. I imagine he’s wasted way more than that in his career.

25

Ebenezer Scrooge 04.02.11 at 9:24 pm

Let me put this in a bit more of technical legal context.
Most criminals’ rights really don’t exist any more. The Supreme Court pretends that they exist, to legitimate the system. But its mighty hard to assert most of them, with white-collar defendants the obvious exception. Right to reasonable bail? This right kicks in only if the judge decides to give you bail in the first place. Right to a lawyer? Sure, but the lawyer won’t have any time for you, and often isn’t competent. Right to freedom from unreasonable search and seizure? It means little more than an obligation on the part of police to lie, and an obligation on the part of the courts to pretend that they’re not lying. Right to a jury? Of course, if you want your sentence tripled. And so forth.
Brady has always been the exception to this. Courts take Brady violations very seriously, probably because a Brady violation is an affront to the dignity of the court. Maybe Connick v. Thompson heralds the end of the last meaningful protection most defendants have against the power of the prosecutor’s office.

26

Outraged 04.02.11 at 11:50 pm

I make the following comment as a non-lawyer: whatever the theory under which it is done, those who suffer injustice as Thompson has must be entitled to compensation, at least to the extent that money can compensate for lost years of one’s life.

Also, what Mr. Scrooge said. To change the present makeup of the court, I suggest we start by impeaching Thomas for purgery during his confirmation hearing.

27

bay of arizona 04.03.11 at 12:35 am

The Court overturned a jury verdict, with little more than a fuck you. Conservative judicial activism at its finest. And no, one dude at Reason doesn’t count as “the Libertarian Movement.”

28

David 04.03.11 at 12:58 am

It is something of a mystery that so many people have considered Scalia to be smart.

29

The Raven 04.03.11 at 1:07 am

The Roberts Court. With notably rare exceptions, better than the Taney Court.

If one reads Scalia, it’s perfectly plain the man is an authoritarian: a monarchist, no less. Thomas is an abuser-identfied victim. So that’s part of the story. Don’t know about the rest of them. I suspect Roberts himself is an aristocrat wannabe.

Croak!

30

mcd 04.03.11 at 7:17 am

IANAL. It seems though that this case was decided on the basis of “it was only one example, no pattern of behavior”.

It also seems like the court may deny the claims in the Walmart case because there are so many examples that they couldn’t possibly be a pattern of behavior.

So what’s the magic number of plaintiffs?

31

praisegod barebones 04.03.11 at 10:39 am

So what’s the magic number of plaintiffs?

None.

32

mw 04.03.11 at 11:48 am

But you’re ignoring some rather important context here, which is that the Court has already granted absolute immunity to the employees. Shouldn’t this require more attention on the part of the administrators?

Oh, absolutely! But if administrators could be targeted, that would have a ‘chilling effect’ on prosecutors offices, too. But understanding this reasoning doesn’t mean I agree — I think that would be damn good thing if there was a chilling effect on out-of-control prosecutors. And if it were up to me, there would be no immunity for the employees either. Police and prosecutors who abuse their power in this way should be charged with felonies and thrown in jail. The power of the state to deprive people of years of their lives and destroy their futures (or even kill them — as could easily have happened to John Thompson) is an awesome power and those who abuse it absolutely should be prosecuted.

IMHO, their are fewer lower species of vermin than prosecutors who railroad the innocent for their own political advancement. And, consistent with the fact that this isn’t just a conservative thing, one such almost became the Democratic senator from Massachusetts (and, btw, note which justices voted against Coakley in Diaz). But in the Fells Acres case, Martha Coakley wasn’t the original prosecutor, she was only the one pulled out every stop to prevent Gerald Amirault from being exonerated and released. The guy who actually prosecuted the Amiraults, Scott Harshbarger? He went on to become attorney general and Democratic gubernatorial candidate in MA and later president of Common Cause. There’s a great deal of political upside potential and virtually no risk in railroading the innocent in high-profile cases, and there seems to be no shortage of either ambitious, amoral Republicans and Democrats willing to do it.

33

Andrew 04.03.11 at 12:00 pm

Scott @12:

But you’re ignoring some rather important context here, which is that the Court has already granted absolute immunity to the employees. Shouldn’t this require more attention on the part of the administrators? Or do you agree with the Five Horsemen that nobody in the DA’s can ever be held liable for even the grossest civil rights violations?

Right, prosecutors generally have absolute immunity from personal liability (an absurdly broad immunity moreover, and one that ought to be changed). And so Thompson may well be left without compensation for his injuries. That’s awful, but that’s also not really what the issue in the case was about.

The case is about whether a particular section of a particular statute can provide liability in this kind of case, on the facts offered. It’s not about whether Thompson SHOULD have some legal remedy available to him.

The central type of instance against which section 1983 is meant to protect against is that of a deliberately unconstitutional policy on the part of state or local governments.

So the DA’s office could be liable if it actually had an unconstitutional policy in effect (stated or not), or if there were a failure to train of a magnitude discussed above. No one is claiming that the DA’s office can never be liable.

Now… 3 questions: (1) Should we make municipalities liable for the individual constitutional violations of their employees, when no policy of the municipality caused the violation in the relevant sense? Very possibly, though it’s a hard question.

(2) Should that liability be imposed by overruling precedent and expanding the meaning of section 1983? Very possibly, though my gut instinct is that we’d be stretching the statute beyond its reasonable limits to achieve what we (rightly) view a better law. I’d rather Congress simply amend the law and remove all doubt.

(3) If (1) and (2) are yes, then is THIS the case in which to do so? No. That’s not what was argued, that’s not what was considered, and that’s obviously not what received much discussion in the opinions.

Your sense of justice – my sense of justice – that of likely everyone – is offended by the outcome. A prosecutor withholds key exculpatory evidence, and a man accused is thereby imprisoned for years. He brings a lawsuit for relief, and wins – which seems like the just outcome – and then the Supreme Court, at the end of the game, rejects it.

But the broad issue of whether the law provides Thompson a just outcome was not before the Supreme Court. Instead there’s a much narrower, more technical issue about the limits of section 1983 liability. Our emotions respond to the former, but it is the latter that the Court had to decide.

(I think eeyn524 @24 makes an excellent point; and Paul Campos’s point @14 regarding “autonomous reasoning” is intriguing).

34

Ben Alpers 04.03.11 at 1:02 pm

I suggest we start by impeaching Thomas for purgery during his confirmation hearing.

I’m sure the House Republican leadership will be very responsive to the suggestion.

35

JP Stormcrow 04.03.11 at 1:14 pm

So what’s the magic number of plaintiffs?

That’s a trick question. Which side has more corporations and Republican presidential candidates?

36

Bruce Baugh 04.03.11 at 2:26 pm

Lee A. Arnold@7: Your guess is a good one if we just look at the current landscape, but it can’t explain why abortion came to the center of their obsession garden so late – not until the late 1970s, most of a decade after Roe v. Wade. There’s plenty of good evidence, including contemporary statements by founders of the modern Religious Right, about their settling on abortion after failing to get anywhere with things like old-fashioned unreconstructed racism in response to civil rights legislation and its enforcement. Abortion was nowhere in sight in the agendas of 19th century plutocrats, nor in those of the early 20th century fundamentalists, nor in any of the other precursors to current movement conservatism. It’s a proxy for other things.

I think it’s more useful to see their hatred of abortion (for the wrong people, natch) in the context of their obsessions with largely imaginary welfare cheats, women using birth control and therefore not fearing sex, and the like. They hate and fear the idea that anyone who deserves punishment and misery should ever escape it, and they’ll gladly make everyone unnecessarily miserable to make sure that the morally guilty get the fullest possible taste of hellfire while still alive.

37

LFC 04.03.11 at 4:05 pm

David @28: It is something of a mystery that so many people have considered Scalia to be smart.

Ok, my comment @1, to which this responds, was perhaps not well put. But ISTM that Scalia’s opinions, esp. a concurring opinion like this where he doesn’t have to worry about speaking for anyone except himself and whoever wants to join (in this concurrence only Alito joined him), do have a recognizable voice: they are well-written, sometimes sarcastic or biting, and sound as if he himself has written them, not his clerks. (I vaguely remember a post at The Monkey Cage a while ago which reported on research into stylistic consistency in SC Justices’ opinions and found, among other things, that Scalia was at the higher end in terms of stylistic consistency across terms, which suggests that he does indeed do a fair amount of his own writing.) Of course, that he sometimes writes in his own voice does not mean that his opinions are well-reasoned; that’s a different issue. Often they’re probably not. For instance, in this concurrence he goes off on a line about how one couldn’t know whether blood evidence was exculpatory until it’s been tested, thus there was no clear obligation to turn over untested blood evidence, or something like that. So – duh – test it, unless you don’t really care who actually committed the crime. This “don’t ask don’t tell” approach, as Ginsberg calls it, just seems strained and unconvincing.

38

PHB 04.03.11 at 4:05 pm

Thomas and Scalia have been well known as political hacks throughout their tenure.

Thomas is conspicuously accepting bribes from plaintifs with cases before the court through his wife’s fake political organization. This is not merely a conflict of interest it is naked bribe taking. Democrats should impeach him for corruption when they next get the chance. They may not find a majority to convict in the Senate, but the point should be made.

This particular piece of Republican corruption does not surprise me. Bush was a spectacularly corrupt and corrupting President. So it should be no surprise that his appointees should be similarly corrupt.

39

LFC 04.03.11 at 4:13 pm

@37: G.W. Bush didn’t appoint them. Reagan appointed Scalia and Bush 41, iirc, appointed Thomas.

40

ejh 04.03.11 at 5:17 pm

Most criminals’ rights really don’t exist any more

Most what?

41

Gene O'Grady 04.03.11 at 5:38 pm

On prosecutors railroading the innocent, that’s one thing I learned from my father talking about his time as judge. It was something he had to be aware of with certain guys from the DA’s office and had to be creative trying to balance the playing field. However, given the political cast to the judiciary under governors like Deukmejian and Wilson, there simply aren’t going to be trial judges who give a damn about that; in fact I could name one who was more concerned than the D.A. with railroading defendants.

As to why abortion became a big issue in the late 70’s, remember who was elected pope in 1978. His big claim to fame had been being on the wrong side of Humanae Vitae, and his appointees have pretty much been fanatical about using the abortion issue as a way to make up for their loss on contraception. It should be added that that pope and his bishops are extremely misogynistic even by Catholic standards.

42

mds 04.03.11 at 6:31 pm

As to why abortion became a big issue in the late 70’s, remember who was elected pope in 1978.

A substantial segment of American Catholicism was already mobilized on abortion well before then. It was the fundamentalist Protestants moving into the antichoice absolutist camp that caused the big shake-up in the late 1970s. Previously, it had been one of those “Catholic” issues. In 1969, the Southern Baptist Convention affirmed qualified support for abortion, and eminent fundamentalist Baptist theologian W.A. Criswell intially praised Roe v. Wade. Then along came Dominionist stooge Francis Schaeffer to urge fundamentalists to abandon their traditional “apartness” from political life, and seek to seize control of an ever-more-decadent culture, especially on the matter of abortion. Whereupon a light bulb went on over Jerry Falwell’s head, and he realized that this might succeed in gaining him the temporal power he had long craved as a leading figure in what Mr. Baugh referred to:

There’s plenty of good evidence, including contemporary statements by founders of the modern Religious Right, about their settling on abortion after failing to get anywhere with things like old-fashioned unreconstructed racism in response to civil rights legislation and its enforcement.

The lure of political influence was strong enough for Falwell and his ilk to even embrace working with idol-worshiping papists. Just as we’re seeing more signs of a marriage of convenience between traditional right-wing fundamentalists and Mormons, after decades of the former denouncing the latter as a vile Satanic cult.

43

PHB 04.03.11 at 8:21 pm

@LFC

Yes, I know Bush only appointed two members of the court (to call them justices would be ridiculous). But those two members enabled this injustice.

It is possible that over time Roberts or Alito may realize that they no longer need to be hacks. But it is just as likely that they will follow Thomas and openly auction their decisions by taking bribes through their wives.

44

really strange fruit 04.03.11 at 10:13 pm

What’s this Brady nonsense and niggling over patterns? The supreme law of the land, CCPR 14 (6), is perfectly clear: ‘When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.’ This decision shows why the state will not execute that law. Under the same Responsibility to Protect doctrine that we used to sic NATO on Libya, the US has undermined its sovereignty in terms of Pillar I, which requires adherence to core human rights standards. Guess it’s time for a no-fly zone enforced with eighty or ninety stray tomahawks regrettably leveling the Supreme Court.

45

David 04.03.11 at 10:30 pm

@PHB. Don’t hold your breath regarding Roberts or Alito eschewing hackhood. Alito is probably a borderline sociopath (Thomas is full-blown, imho) and Roberts is, well, a hack. I had this same conversation with a friend (still owes me two dollars) regarding Scalia the week he was confirmed. Just wait and see, once he realizes he has lifetime tenure he’ll settle into being a great judge. Still waiting.

46

bh 04.04.11 at 12:11 am

#21. I don’t understand it either. I do know that when an argument defending some atrocity that starts with a self-congratulatory note about things being Not So Simple, some sophist bullshit this way comes.

47

PHB 04.04.11 at 1:46 am

#44, #22

I don’t think that the problem is simple either. While it is tempting to consider Thomas simple, Scalia is not.

The idea that the state should only pay compensation if the injury is part of a pattern is bunk. It might be argued that $14 million is too high but $0 is certainly too low.

And that Andrew, is something only a simpleton or a knave would fail to understand.

48

KCinDC 04.04.11 at 2:56 am

Bruce Baugh @35, strangely, the fear that people who deserve punishment will escape it doesn’t extend to crimes by the ultrarich that swamp anything welfare cheats could dream of.

49

Bruce Baugh 04.04.11 at 3:23 am

KCinDC: That’s because they don’t see the ultra-rich as deserving of punishment the way you or I might. They retain a strong Puritan streak about success as a demonstration of God’s favor, so long as one doesn’t pervert the gift of wealth by using it to endanger the system that lets God bestow the blessing on others. (With all the usual special pleading, naturally: wrecking the global economy isn’t sinful, but funding a push for more welfare is.)

If they worked off, say, my standard of who deserves punishment, things would be more lively.

50

Myles 04.04.11 at 5:01 am

Ginsberg voted against Angel Raich (a medical marijuana patient with an inoperable brain tumor) in order to preserve a broad interpretation of the commerce clause.

Perhaps then sound logic should found Raich a persuasive argument against an overly broad application of the Commerce Clause, and caused one’s own view of the clause to be adjusted accordingly, rather than the inverse, where a pre-existing view of the Commerce Clause overrode the reality of the case. In what way is this dissimilar to Scalia’s refusal to be reasonable in Connick v. Thompson, except in degree? (And I suppose differences of kind caused by differences of degree, as the latter does involve life and death.)

Of course Thomas, Alito, Scalia are hacks by this definition, but Roberts isn’t to anything near the same degree, and nor is Kennedy. But so would Ginsburg be a hack if we are to call the right-wing trio hacks, and I don’t think she is. Thomas is probably still a hack by any definition, but the belief that all right-wing members of the Court are hacks is not smart.

51

Myles 04.04.11 at 5:15 am

(I’m actually pretty distressed by the American tendency to view the law as the summation of all our moral beliefs (which is, ironically, Lord Denning-esque, who is the great moralizer of English law). Look, we aren’t Continentals. Our legal system has persisted for as long as it did and does because it is fundamentally humble and makes no claims for moral leadership, a system of rules to govern human society that may or may not be morally inspired.

Connick v. Thompson is a travesty, but its being a travesty has nothing to do with a bunch of other stuff that go into the “we don’t like for moral reasons” category.

52

VasVas 04.04.11 at 10:54 am

“Connick v. Thompson is a travesty, but its being a travesty has nothing to do with a bunch of other stuff that go into the “we don’t like for moral reasons” category.”

With what does it have to do then? The lack of integrity of a SC member is a moral issue, no? The psychopathology of a SC member (consiously ignoring the distrinction between right and wrong)?

53

Andrew 04.04.11 at 11:21 am

PHB @47: But as I said @33 in response to Scott’s excellent point, the case is NOT about whether Thompson is deserving of compensation (of course he is). Nor is the case about whether the law adequately provides Thompson with compensation. The legal question is much, much narrower.

54

Brett Bellmore 04.04.11 at 11:21 am

“Thomas is probably still a hack by any definition, but the belief that all right-wing members of the Court are hacks is not smart.”

Nah, all the right-wing members of the Court are indeed hacks. What’s rather silly is the notion that the rest of the members aren’t hacks, too. They are, they’re just YOUR hacks, so you cut them some slack. Rather a lot of it, in fact.

You can’t get on the Court if the political class don’t think you’re a hack. Non-hacks aren’t reliable enough.

55

PHB 04.04.11 at 12:53 pm

Andrew @53

Where does it say in the constitution that a plaintiff must demonstrate fault before receiving compensation for injury to constitutional rights?

The requirement that the plaintiff demonstrate a pattern is bogus in itself.

Next of course we wil discover that Ginny Thomas has received $50K from the defendants in this case like she has in so many other SCOTUS cases.

When Thomas is openly taking bribes from those with business before the court, the analysis of his legal opinions is moot. Thomas took close to three quarters of a million in bribes last year and nobody in the media has the guts to call them for what they are.

The money ends up in Thomas’s pocket, ergo it is a payment to him just as much as to his wife. Ergo it is a bribe. The man is a crook, a corrupt bribe taker.

Oh and did I mention, Thomas takes bribes?

56

LFC 04.04.11 at 1:35 pm

really strange fruit @44:
The reason the Supreme Court did not (and I assume it did not) refer to the UN Convention on Civil and Political Rights (and thanks for the quote from it, btw, though it would have helped if you’d spelled out ‘CCPR’) is probably that none of the parties raised it. It would also help if you’d remind people what Pillar I is. It’s not the case that everyone reading this thread will immediately know what ‘CCPR’ and ‘Pillar I’ are.

57

mw 04.04.11 at 2:24 pm

Radley Balko’s take on the case and Scalia:

Scalia is often credited for his consistency. But consistent or not, there’s something pretty unsavory about a judicial philosophy that cites a ruling that we now know sent an innocent man back to prison as an authority to deny compensation to another innocent man who was nearly executed because the government hid the evidence that would have and eventually did exonerate him.

The Youngblood connection makes this ruling just that much worse.

58

soullite 04.04.11 at 2:29 pm

It is pretty clear that the law only exists to protect the powerful and well connected, and to defraud everyone else.

If you make less than 500,000 a year, you’re better off turning to your shotgun to right wrongs than you are to turn to the police or the courts.

59

chris 04.04.11 at 3:04 pm

Should we make municipalities liable for the individual constitutional violations of their employees, when no policy of the municipality caused the violation in the relevant sense? Very possibly, though it’s a hard question.

I don’t think it’s that hard. If the municipality issues one of its employees a truck, and he runs me over with it, it’s liable for his negligence (AFAIK), even though their only relevant policy was “someone has to drive this truck to carry out the city’s business”. By doing the act of truck-driving at all, the municipality bears the risks associated with the act, such as liability for accidents. (Unless of course they contract with an insurer to do so, instead.)

In some cases, I think it would be reasonable for the municipality to be able to seek contribution, or even indemnification, from the employee. But they certainly should be on the hook if the employee is judgment-proof; that’s clearly a lesser evil than leaving the victim/plaintiff without remedy.

Prosecutorial powers are clearly more dangerous than a truck, so why shouldn’t the same analysis apply? That which hands out prosecutorial powers to human beings must expect that sometimes they will hurt people with them.

60

Myles 04.04.11 at 3:14 pm

I think if the discussion has come to accusations of personal corruption and enrichment of the Thomases, then it has gone completely off the rails.

Is this even being moderated?

61

Steve LaBonne 04.04.11 at 3:34 pm

I think if the discussion has come to accusations of personal corruption and enrichment of the Thomases, then it has gone completely off the rails is finally getting to the heart of the matter.

Fixed that for you. You’re welcome.

62

Myles 04.04.11 at 4:01 pm

is finally getting to the heart of the matter.

One’s own heart of darkness and paranoia, perhaps.

63

mpowell 04.04.11 at 5:10 pm


One’s own heart of darkness and paranoia, perhaps.

Is it your contention that it is entirely seemly for a man whose wife works as a lobbyist representing a plaintiff should hear cases involving that plaintiff? This is open bribery and the only reason we allow it is that it would be too discouraging to acknowledge that this could be happening on the Supreme Court.

bh @46: Yeah, it’s not as if there aren’t dissenting justices. IANAL, but if you have a disagreement between Supreme Court justices, you are talking about a substantive issue, not a legal technicality. So I don’t see how anyone could be dismayed by this state of things and not also disagree with the decision. Unless that person was a lawyer, of course.

64

Jim Harrison 04.04.11 at 6:03 pm

Over the years, the courts have acted in much the same way as the rabbis of the Talmud only where the Jewish sages labored to finesse the barbarities of the Torah, our Supreme Court judges have to get around the Bill of Rights, a document they would never have written themselves. People talk about Connick v. Thompson as if it were a question of justice versus equity, but I think the deeper contradiction is justice versus administration. What matters to the majority is bureaucratic rationality and the ability of the system to maintain order. Paying lip service to the Constitution is just an irritating necessity.

65

Salient 04.04.11 at 6:20 pm

they’re just YOUR hacks, so you cut them some slack.

Are you saying Thomas et al are YOUR hacks, i.e. that you agree with and support the conclusion and consequence of their ruling here and elsewhere (setting aside the technical details of how they set out a supporting argument)?

I mean, seriously, I never thought of Ginsburg as my hack, but I also never thought of Thomas or Scalia as your hacks, Brett. If you’re going to drive-by, it would be nice^1^ of you to more explicitly acknowledge that you do indeed accept and “own” the rulings and dissents of Scalia, Roberts, et alia.

^1^This is not intended to imply that I anticipate any niceness from someone who’s been happy to casually slander with a broad brush in other threads. My naivete is probably unbounded in some ways, but not in that way.

66

MPAVictoria 04.04.11 at 6:52 pm

“Is this even being moderated?”
Easy there Mr Sanctimony McPatronizer. You have made your point. We get that you are a corporate stooge who couldn’t give a crap about the rights of people who aren’t millionaires. You can stop posting anytime now.

67

politicalfootball 04.04.11 at 9:07 pm

I think if the discussion has come to accusations of personal corruption and enrichment of the Thomases, then it has gone completely off the rails.

You hang around on academic-oriented blogs and you’ll see this stuff all the time. The other day, I saw someone accuse the Bush administration of condoning torture!

68

Myles 04.04.11 at 9:42 pm

he other day, I saw someone accuse the Bush administration of condoning torture!

False equivalency.

69

Dan Helphrey 04.04.11 at 11:03 pm

This makes sense if one understands the nature of American conservatism. American conservatives do not now, nor have they ever, cared for liberty as a broad principle; the only real point they share with libertarians is laissez-faire economic doctrine.

What conservatives are after is the good old days when it was unquestioned that rich white protestant men were in charge; the middle class were the not-so-rich white protestants, everyone else were the lower class, and anyone who questioned his/her place in society was “uppity.”

70

PHB 04.05.11 at 12:01 am

@Myles 60

I note that you dispute neither the facts (which are admitted) nor attempt to explain how taking $700,000 from a party with an interest in a case is not bribery.

Instead you demand that the question not be raised. I am not surprised that you do so because the facts allow for no other interpretation than that Thomas is accepting bribes through the lobbying activities of his wife.

When faced with the task of defending the indefensible, trying to gag the messenger is really the only option open. I note that you appeal to a censor (‘is this discussion moderated’) in an attempt to block out the unpleasant truth that Clarence Thomas accepts bribes.

Perhaps if rather more people on the right would face up to the fact that so many of their side are openly accepting graft, the Conservative movement would not be in the straits they are today.

Oh and did I mention? Clarence Thomas takes bribes.

71

Myles 04.05.11 at 12:11 am

Oh and did I mention? Clarence Thomas takes bribes.

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there. No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen. It’s far more likely that he was so disposed in the first place.

I feel simply that we not libel Supreme Court justices unless we have solid proof, which isn’t there. The default presumption is that Supreme Court justices might be biased, but they are not corrupt.

72

Myles 04.05.11 at 12:12 am

(And I don’t mean “don’t take money bribes” because they are exceptional virtuous or anything like that; it’s more that the money is simply not worth it. People don’t become Supreme Court justices for money, and if it’s money motivating them they would never have bothered with that august bench in the first place.)

73

Eli Rabett 04.05.11 at 1:17 am

Scalia is your average, garden variety Italian fascist.

74

Sebastian 04.05.11 at 1:50 am

“Instead you demand that the question not be raised. I am not surprised that you do so because the facts allow for no other interpretation than that Thomas is accepting bribes through the lobbying activities of his wife.”

I think it is unseemly, but on the other hand do you think this is CHANGING Thomas’ mind about any of the cases? You didn’t like most of his rulings in the past 12 years before Mrs. Thomas started working with tea party advocacy, right?

75

ScentOfViolets 04.05.11 at 4:52 am

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there. No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen. It’s far more likely that he was so disposed in the first place.

You’re the guy that sneered “liberals don’t understand the economic arguments of comparative advantage for free trade”, right? The same guy who, as it turns out, didn’t understand what comparative advantage was, and when this was pointed out rather weekly amended that it wasn’t that kind of comparative advantage you were talking about.

History matters. Reputation matters. In this and in numerous other incidents, you have made it abundantly clear to my satisfaction that your opinion on these sorts of topics is not worth the electrons used up in explicating them.

If I were you, I’d concentrate on posts that were a little more evidence-based for a while.

76

ScentOfViolets 04.05.11 at 4:58 am

I think it is unseemly, but on the other hand do you think this is CHANGING Thomas’ mind about any of the cases? You didn’t like most of his rulings in the past 12 years before Mrs. Thomas started working with tea party advocacy, right?

Sigh. I’d ask what Sebastian thinks anyone here could write that would be capable of influencing Thomas’ opinions, including anything of his.[1]

But we all know where that would go, right?

[1]Apparently Sebastian thinks that if only people had favorable comments to make on Thomas’ previous rulings, then he would be amenable to their arguments about the unseemliness of his wife being involved in these sorts of cases. That’s pretty twisted in and of itself.

77

Myles 04.05.11 at 5:49 am

You’re the guy that sneered “liberals don’t understand the economic arguments of comparative advantage for free trade”, right?

Only if you insist on a really uncharitable definition of all liberals being exactly the same as one particular leftist. It is an unmistakable fact that someone like Michael Moore (who is not necessarily a liberal) is somewhat incapable of understanding comparative advantage; the UAW, the same. But I wasn’t even referring to Moore or the UAW.

But you are insinuating here that I am a flat-earther who thinks that Barack Obama or Nancy Pelosi or Henry Waxman don’t understand comparative advantage. This is basically libel.

Apparently Sebastian thinks that if only people had favorable comments to make on Thomas’ previous rulings, then he would be amenable to their arguments about the unseemliness of his wife being involved in these sorts of cases.

What on earth are you talking about? Sebastian admitted that the payments were unseemly (as they must be). He is merely saying that the unseemly payments have nothing to do with the outcome, and thus favouribility to liberals, of Thomas’s decisions, given that he made the same type of decisions with or without the payments. What the heck is there even to argue about the unseemliness of the payments? Is there a strawman somewhere that I’ve not apprehended, who’s saying that they aren’t unseemly?

Sigh.

Don’t.

78

Myles 04.05.11 at 5:57 am

In this and in numerous other incidents

Generally anyone who’s even close to being a half-competent prose stylist wouldn’t use “incidents” to refer to online discussions. That is, unless one wishes to impute to them shades of meanings not present in the actual event. In incidents, things tend to actual happen, rather than merely hot air get exchanged.

Your approach to discussion seems to be entirely Jesuitical. It’s not a compliment.

79

Nabakov 04.05.11 at 6:04 am

“No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.”

Oh, that’s so sweet.

80

MPAVictoria 04.05.11 at 12:31 pm

“It is an unmistakable fact that someone like Michael Moore (who is not necessarily a liberal) is somewhat incapable of understanding comparative advantage; the UAW, the same.”
Never met a working person you didn’t despise eh Myles? Damn those union bastards trying to earn enough money to support their families and send their kids to school.

81

Andrew 04.05.11 at 12:39 pm

PHB @55: I understand, but for better or worse, the power to sue for damages for this type of violation doesn’t spring automatically from the relevant portions of the Constitution. The statute which enables that is 42 USC 1983.

Chris @59: Prosecutorial powers are clearly more dangerous than a truck, so why shouldn’t the same analysis apply? That which hands out prosecutorial powers to human beings must expect that sometimes they will hurt people with them.

Yes, that’s what the Cato Institute argued in its amicus brief for the case.

I think it’s a good argument, but it also dramatically expands the civil liability faced by state and local governments under the statute. Given the amount of discretion governments must give to prosecutors and judges, among others, expanding liability so dramatically should be undertaken very carefully, since doing so may have unexpected consequences and high costs. Ultimately you may be right, and I’m sympathetic though undecided.

It’s a hard question in that it’s a very complex policy question, and I’d be wary of 5 judges deciding the question, especially without adequate briefing on the issue or argument.

But I wonder whether we’re not getting at the real heart of the disagreement between the liberal wing of the Court, and the conservative and conservative-but-still-surprising (I’m not sure what to call Kennedy, to be honest) wing of the Court. By loosening the requirements on how much notice a municipality must have before being liable for violations in a failure-to-train case, the liberals move us down the road towards a more general vicarious liability. The conservatives, of course, would be wary of the Court changing the law simply on the basis of reaching a more just state of the law – and Thomas voices his suspicion as to what Ginsburg is really up to at the end of his opinion.

This accounts for Thomas’s – and especially Scalia’s – impatience with Ginsburg’s recounting of the undeniably moving facts of the case. On their view, they are standing firm within their limited powers, refusing to act as philosopher-kings when the occasion tempts them.

There’s something to be said for all sides here, frankly. We should distinguish our emotional reaction to the result from how we should understand and react to Thomas’s opinion.

82

chris 04.05.11 at 1:36 pm

I think it’s a good argument, but it also dramatically expands the civil liability faced by state and local governments under the statute.

Only to the extent of the provable damages of the victims. What people sometimes overlook about the tort system is that it doesn’t create the damage, it only allocates it. If the tortfeasor isn’t bearing that burden, *the victim is*.

Government exists to have broad shoulders and bear burdens that would crush an individual. Contra Rand, no individual human is qualified to play Atlas. That’s why we’ve created collaborative institutions to take on tasks that are beyond the capacity of individuals.

The conservatives, of course, would be wary of the Court changing the law simply on the basis of reaching a more just state of the law

That’s a reasonable concern, and I was speaking mainly to the policy issue rather than the statutory construction issue. If the solution has to come from Congress, then we’re screwed in the short term, but maybe in 2013 something can be done.

But isn’t absolute (as opposed to qualified) immunity for the individual prosecutors judge-created in the first place? IIRC, garden-variety qualified immunity would be destroyed by malice, which seems to be present on the facts in Connick v. Thompson. All of the cases where absolute and qualified immunity produce different results are really bad standard bearers for absolute immunity (because of the facts they have to have to fit into that category): doesn’t that say something about the wisdom of retaining it?

83

Myles 04.05.11 at 2:38 pm

Never met a working person you didn’t despise eh Myles?

I’m not the one here who’s busily libelling people left, right, and centre.

84

MPAVictoria 04.05.11 at 3:00 pm

“I’m not the one here who’s busily libelling people left, right, and centre.”

Was it another Myles who posted this:

“It is an unmistakable fact that someone like Michael Moore (who is not necessarily a liberal) is somewhat INCAPABLE of understanding comparative advantage; the UAW, the same”

Sounds like libel to me. Of course what do I know? I am just a simple union member who is obviously incapable of understanding such complicated issues.

85

Myles 04.05.11 at 3:19 pm

Sounds like libel to me. Of course what do I know?

A) Michael Moore is probably proud of not understanding comparative advantage, and it’s hardly libel if so; and B) It can’t be libel, at least not in the U.S., if it’s actually true. In the case of the UAW, their economists certainly understand what comparative advantage is, but they pretend not to, and I’ll just take them at their own face value.

Whereas SoV was literally slandering me, out-and-out suggesting that I somehow said “liberals=people who don’t understand comparative advantage.” That is despicable dissimulation, and betrays a wholly dishonest mind.

86

chris 04.05.11 at 3:49 pm

First of all, if you think that low wages aren’t an advantage to the worker, only to the capitalist, that isn’t “not understanding” comparative advantage, that is disagreeing with some applications of it. Ditto for “advantage” consisting of the ability to externalize costs.

But even if Moore does refuse to understand comparative advantage, you’re still slandering him if you say he’s *incapable* of understanding: that’s tantamount to claiming he is stupid, rather than obstinate.

On the other hand, it’s an objectively verifiable fact that Thomas’s wife takes money from parties to cases in which Thomas sits in judgment and refuses to recuse himself. If there were any ordinary disciplinary body capable of effectively overseeing Thomas’s conduct, there is little doubt that he would be removed from the bench. Fortunately for him, the only disciplinary method applicable to the SCOTUS is impeachment, which is too politically charged to be a reasonable possibility simply because his behavior merits it.

87

ScentOfViolets 04.05.11 at 4:22 pm

I think it’s a good argument, but it also dramatically expands the civil liability faced by state and local governments under the statute. Given the amount of discretion governments must give to prosecutors and judges, among others, expanding liability so dramatically should be undertaken very carefully, since doing so may have unexpected consequences and high costs. Ultimately you may be right, and I’m sympathetic though undecided.

Given this, and given that the situation is as described, that exculpatory evidence was deliberately withheld, and so on and so forth, just what are Thomas’s options for redress then? From what you have written, the answer seems to be “nothing”. If that’s the case, would you say so explicitly?

88

matth 04.05.11 at 5:03 pm

ScentOfViolets — Andrew wrote upthread that “Thompson may well be left without compensation for his injuries.”

That’s not an incredibly surprising result. Sec. 1983 doesn’t generally impose vicarious liability on municipal governments for employees’ wrongdoing, and individual officers are often protected by immunity.

So it’s not especially odd for the victim of an unconstitutional act by a municipal employee to have no federal law right to money damages.

89

ScentOfViolets 04.05.11 at 8:13 pm

Actually, what Andrew wrote is this:

Right, prosecutors generally have absolute immunity from personal liability (an absurdly broad immunity moreover, and one that ought to be changed). And so Thompson may well be left without compensation for his injuries. That’s awful, but that’s also not really what the issue in the case was about.

The case is about whether a particular section of a particular statute can provide liability in this kind of case, on the facts offered. It’s not about whether Thompson SHOULD have some legal remedy available to him.

My question to Andrew was if there is any conceivable remedy for Thomas sans this particular lawsuit.

90

Salient 04.05.11 at 8:45 pm

That is despicable dissimulation, and betrays a wholly dishonest mind.

Myles, I was going to comment on how remarkably ungrateful it was for you to chide the same CT moderator-authors who are happy to tolerate your comments here for being insufficiently strict with their moderating, and decided against it on the principle that it would be uncharitable of me. Just realize that you’ve put yourself in a place here with rather few allies and probably quite a number of people thoroughly bothered by your determination to disrupt a conversation that you find unsatisfactory — I notice discussion of the Thomases’ frankly suspect interconnections has dropped off, and I’m disappointed by that. Now hey, I’ve been there myself, and I’m grateful for others’ patience in response. And I know you got some really frustrating information about your former prep school that has put you on edge for several days now. But when you catch yourself in the thick of it like this, over something unrelated to the actual reason why you’re personally intensely perturbed, maaaybe it’s a good time to get your coat and take your leave?

91

chris 04.05.11 at 9:14 pm

I notice discussion of the Thomases’ frankly suspect interconnections has dropped off, and I’m disappointed by that.

I don’t see that there’s much left to say. There’s nothing “suspect” about the Thomases’ connections; it’s quite clear that he takes money from parties with interests in cases before the SCOTUS, that nothing is being done, and that it’s very likely nothing will be done. The difference is how to interpret that — it’s either corruption or no big deal, and if it’s corruption, it’s either unusual or systemic.

So either you think that everyone does it and Thomas is only unusual in laundering the bribes so poorly, or you think that he should be impeached but won’t because of politics, or you think the attacks themselves are another high-tech lynching. How can any of those positions usefully discuss anything with the others?

92

Myles 04.05.11 at 9:49 pm

And I know you got some really frustrating information about your former prep school that has put you on edge for several days now.

a) What on earth does my prep school have anything to do with this
b) I did take my leave, until someone libelled (perhaps unintentionally) me by dragging in unrelated and inaccurate minutaie
c) When libelled, one is entitled to clear it up.
d) When accused (incorrectly) of libel in response, one should be able to explain so.
e) Add.: I was annoyed by my interlocutor’s enthusiasm for bringing up some obsessive and tiresome debate from ages ago and claiming it as a “win”.
f) I’m done.

93

ScentOfViolets 04.05.11 at 9:52 pm

I don’t see that there’s much left to say. There’s nothing “suspect” about the Thomases’ connections; it’s quite clear that he takes money from parties with interests in cases before the SCOTUS, that nothing is being done, and that it’s very likely nothing will be done. The difference is how to interpret that—it’s either corruption or no big deal, and if it’s corruption, it’s either unusual or systemic.

As I understand it, this is usually the reason given for strictures against the appearance of impropriety. It’s too easy for the corrupt and their defenders to try a “How dare you question my integrity” sort of derailment otherwise. And quite frankly, depending on how something like this would be officially investigated, a rather high bar to clear.

As to Myles’ theatrical performances: As I said, he’s made it quite clear on another thread that he doesn’t understand the economic argument for comparative advantage. That doesn’t necessarily disqualify him from having a valid opinion here. What does disqualify him is that he doesn’t know that he doesn’t know – yet another case of a conservative manifesting the Dunning-Kruger effect.

Of course, given that this wasn’t necessarily a conservative ruling, one wonders how much of it flows from the desire to stick a thumb into the liberal eye. Myles’ “conservatism” often appears to be little more than knee-jerk contrarianism of the “If he’s for it then I’m agin’ it” sort. Needless to say, these sort of comments are also automatically discounted (This one actually came up in my stat class a couple of weeks ago in re just how much a test could be in error.)

94

Salient 04.05.11 at 9:53 pm

How can any of those positions usefully discuss anything with the others?

Grumble, ok. I suppose I meant speculative discussion which might include accusations of corruption or unspoken intent more generally. What’s particularly enervating is that Myles has publicly apologized for strange outbursts on at least one thread elsewhere on the ‘net, on the grounds that he’s recently had some bad news in his life, but he’s persisting in this one.

I think it’s fair to say that your comments at #59 and #82 pretty much summarized what needs to be / should be said, so I dunno why I bothered to spill ink over this.

95

Myles 04.05.11 at 10:10 pm

he’s persisting in this one.

See comment #93. And before my interlocutor spills again, I want him/her to either back up the previous libel or retract it. Getting caught red-handed is not an excuse for rolling on with further accusations.

I don’t particularly like to go back on this, but SoV is not helping with his ridiculous attempts at sniping while worming away from the ones he’s missed. He seems intent on not letting me take my leave. I don’t like being libelled, and I don’t like libel of any kind really. This is unjustified.

96

ScentOfViolets 04.06.11 at 12:13 am

Myles, I don’t know how I can be any more direct – I consider your opinions to be worthless because you’ve demonstrated not only incompetency, but meta-incompetency as well. That’s completely aside from any knee-jerk contrarianism that seems to form such a large part of your ouvre.

IMHO, of course.

So in this particular instance, where you say, “No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen. It’s far more likely that he was so disposed in the first place.“, well, I completely disregard it. Considering the source and all.

If somebody else had said what I quoted, somebody who didn’t have your track record, well, I might give their opinion more weight. Possibly.

You are, of course, free to form your own opinions on the worth of anything or everything I might say. It’s a free country that way, though of course some people will always kvetch ;-)

97

really strange fruit 04.06.11 at 12:54 am

LFC@56, you’re right, let me be less telegraphic. It’s amazing that in this case not only are the defendants and justices free to ignore the supreme law of the land, the plaintiffs are evidently afraid to bring it up. It’s awesome how the Convention on Civil and Political Rights (CCPR) has been so effectively suppressed here at home.

About the pillars. Despite Responsibility to Protect (R2P) being a hot topic, as the rationale for attacking Libya, you would never know it has three parts or Pillars. The sole, obsessive focus is on Pillar 3, intervention or ‘response,’ pronounced war. Pillar 1 is, broadly, state responsibilities. To be fully sovereign, states must respect and protect core human rights, including the CCPR; they must accede to the Rome Statute and the International Criminal Court; they must comply with humanitarian law, particularly the UN Charter; and they must promote inclusive societies. If a state has not earned its sovereignty, as we clearly have not, Pillar 2 comes into play: cooperative international capacity building. So after this decision, at the very least the international community should send development consultants to twin our Supreme Court justices until they come up to the minimal standards of the civilized world as defined in R2P.

98

Myles 04.06.11 at 1:01 am

Look, SoV, you libelled me. You haven’t retracted that libel. Don’t try to worm out of it. You can think however you want of my opinions, but the point is that you’ve fabricated, out of thin air, opinions that I’ve never held in the first place. We aren’t even talking about my opinions; we are talking about nonexistent opinions that you made up out of whole cloth, on which basis you libelled me. (#75).

I think I am entirely entitled to demand that you either retract or shut up about my opinions, because you seem incapable of distinguishing actual ones from the ones that exist only in your own fervid and obsessive imagination.

Moving on, about contrarianism: I read Slate. I like Slate. You got a problem with that?

99

MPAVictoria 04.06.11 at 1:40 am

Myles you never responded to this statement
“But even if Moore does refuse to understand comparative advantage, you’re still slandering him if you say he’s incapable of understanding: that’s tantamount to claiming he is stupid, rather than obstinate.”

Until you do I think it would be wise if you refrained from accusing anyone of libel.

100

David 04.06.11 at 1:42 am

But Myles, how can anyone take you seriously? In response to Thomas being described as a hack, you assert that they are all hacks (and by implication not just the current court). You are going to tell me with a straight face that Justices Brennan and Marshall, to name just two, were hacks? Go away, you’re killing me with ineptitude.

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Myles 04.06.11 at 2:03 am

that’s tantamount to claiming he is stupid, rather than obstinate.”

I meant to say he is unable. And he genuinely does not understand comparative advantage, either out of choice, obstinacy, or otherwise. He genuinely doesn’t. That’s not a slur against him, and I don’t think he would regard it as one either.

102

MPAVictoria 04.06.11 at 2:09 am

Myles one can understand what people mean when they say comparative advantage without agreeing with the policy choices made by neo-liberals who won’t be happy until we are all earning 50 cents an hour while working 18 hour days in unregulated factories straight out of the early 19th century. You are making the common mistake of assuming that someone who disagrees with you doesn’t understand what you are trying to say. We understand completely what you want, we just abhor it.

103

Myles 04.06.11 at 2:12 am

You are going to tell me with a straight face that Justices Brennan and Marshall

Insofar as Marshall engaged in Talmudic finessing of precedents to achieve preconceived aims independent of autonomous legal reasoning (however virtuous the aims might be), yes, by that technical definition, he is a hack. No more of a hack than perhaps Ginsburg or Roberts, or maybe even Kennedy, but a hack.

Doesn’t mean he was a bad justice. I don’t particularly think much of his jurisprudence, but then I don’t go about pretending that Richard Posner, who is my favourite living judge, is completely clean on that account either, although he does it less than Marshall, and generally doesn’t bother hiding it when he does.

104

MPAVictoria 04.06.11 at 2:12 am

David don’t forget he also asserted “No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.” Which is such a ridiculous statement that I barely know how to respond. The US political system is rife with politicians taking what amount to be bribes to take particular policy positions.

105

Myles 04.06.11 at 2:14 am

We understand completely what you want, we just abhor it.

“We” =/= Michael Moore.

106

Myles 04.06.11 at 2:14 am

The US political system is rife with politicians taking what amount to be bribes to take particular policy positions.

Campaign contributions are not, in se, money bribes.

107

Salient 04.06.11 at 2:18 am

What on earth does my prep school have anything to do with this

I dunno, what did your prep school have to do with Disqus threaded comments?

I think I am entirely entitled to demand…

Myles, doesn’t it feel at least a little weird to go on about your entitlement to use this comment space to make demands of others, in the same thread in which you asked why moderators weren’t acting to contravene other people’s use of this comment space? CT policy, etc, etc: “commenters should remember their position as guests, and not seek to assert imagined rights to publication.”

There exist courts where you could in theory bring charges against people for crimes you allege they have committed against you, and I’m pretty sure that’s where you are entirely entitled to demand redress for your grievances. But whatever, do as you will, there are prettier graveyards for me to go whistle past.

108

MPAVictoria 04.06.11 at 2:27 am

“Campaign contributions are not, in se, money bribes.”

You are either insane or so naive that I have to wonder how you function in the real world. Of course they are bribes! Why else would corporations or wealthy individuals bother giving away what they love most in the entire universe, their money, if not to bribe a politician to take a particular position. Take this as one example:
http://en.wikipedia.org/wiki/Jack_Abramoff

There are hundreds more if you care to look.

109

PHB 04.06.11 at 2:28 am

@ Myles 71

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there.

First off, there is absolutely no such requirement. If a public official accepts money from people with issues before him it is criminal regardless of whether it modified his behavior. To accept money is to accept a bribe, end of story.

As for your false accusation that I have libeled Thomas, that is itself libelous.

In this case, Thomas accepted $700,000 in bribes. He is corrupt and his corruption is utterly indefensible.

110

Salient 04.06.11 at 2:30 am

Oh, but one more of these ‘notably rare exceptions’ jokes while I’m still up, waiting for AP’s Prosser v Kloppenburg tallies to update:

With notably rare exceptions ($90,000 in a freezer), no one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.

[I'd forgotten that gem in the third paragraph, too... Any collection of funniest sentence clauses to appear in an AP stub must include The money was divided among various frozen food containers.]

111

MPAVictoria 04.06.11 at 2:41 am

“We” =/= Michael Moore.”
Somehow I think Mr. Moore is smarter than you give him credit for.

112

PHB 04.06.11 at 2:41 am

@Myles 105

Oh what a poor naive fool you are.

The way that people make money from their campaigns is that they hire their relatives as ‘campaign managers’ and ‘fundraisers’. Bay Buchanan skimmed 10% of the Buchanan for president advertising money by accepting the customary kickback for placing the campaign adverts. Other Republicans have a nice little earner with their wives taking various fund raising fees.

You can be pretty sure that when a bunch of people preach the value of self interest and selfishness that they believe every word they say and that they divert as much cash as they can into their own pockets.

That is why the GOP is so dedicated to pushing hot button ‘wedge’ issues despite all polling evidence that they have ceased to be wedges of a decade or more. A round of homophobic attacks can net a candidate $100K in campaign contributions of which $10K can be diverted into their own pocket.

Tom Delay and others used to run fake charities that spent no money on their purported causes, all the money raised went to fund the ‘fundraisers’, typically held on golf courses.

113

Myles 04.06.11 at 2:45 am

With notably rare exceptions ($90,000 in a freezer), no one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.

Being a member of Congress in America is not, generally speaking, regarded as holding high office.

Of course they are bribes!

Only by the standards of folk morality. No legal definition could abide by this.

in the same thread in which you asked why moderators weren’t acting to contravene other people’s use of this comment space?

That was a half-joking rhetorical question (is there a sarcasm font?), and in any case as response to straight-up conspiracy theory mongering. If there’s one thing I find seriously creepy, it’s conspiracy theories.

and I’m pretty sure that’s where you are entirely entitled to demand redress for your grievances.

It’s not so much redress as the impossibility of having a civilized conversation when your interlocutor insists on making stuff up about you. As far as I am aware, SoV is very insistent on simultaneously a) making stuff up about me, while b) saying that I am the discreditable one. Both together cannot hold.

114

PHB 04.06.11 at 2:48 am

Salient @109

Faced with the fact that Clarence Thomas has openly accepted $700,000 in bribes you assert that nobody in American politics accepts bribes.

Then you bring up the peculiar case of ‘Mr Freeze’ which is a rather odd example as in that particular case the bribe was paid for influence peddling in a different government to the one he was elected to. While it was clearly corrupt and the guy clearly deserves his jail time, I have difficulty understanding how that conduct was any worse than that of Thomas taking bribes seven times as large last year.

In fact there are numerous people who have taken cash, ‘Duke Cunningham’ even made out a menu with charges for specific services.

115

Myles 04.06.11 at 2:56 am

Somehow I think Mr. Moore is smarter than you give him credit for.

Well, if he is indeed smarter, he is either a) ignorant of economics by choice, obstinacy, or chance or b) lying or c) cognizant of economic arguments but rejects them in favour of his own interpretations.

a) seems the most likely. I don’t think he’s lying and I don’t think he’s a heterodox economics mind.

Oh what a poor naive fool you are.

As for your false accusation that I have libeled Thomas

You have indeed libeled Thomas, if he were to sue you for libel and you cannot prove the truth of your assertions to a standard satisfactory to a court of law (this is the American version), given that you accused him of not just impropriety but bribery, IIRC. Of course, this isn’t a court of law (thankfully).

116

Myles 04.06.11 at 3:00 am

I dunno, what did your prep school have to do with Disqus threaded comments?

The blogger in question was complaining about how terribly unfair education funding in America is. You can imagine how that, given what I had just found out about what was going on in my prep school when I was there, made me feel nauseous in the extreme.

117

ScentOfViolets 04.06.11 at 3:09 am

Look, SoV, you libelled me. You haven’t retracted that libel. Don’t try to worm out of it. You can think however you want of my opinions, but the point is that you’ve fabricated, out of thin air, opinions that I’ve never held in the first place.

Sigh. Believe it or not, I’ve gone very easy on you. And to prove it, I’ll ask you to quote, precisely, what I have said that is so libelous (I should think my critiques quite devastating enough as they are), and why, precisely, it is so libelous. I’m pretty sure you can’t do it . . . which is yet another reason to discount anything you may have to say.

118

yeliabmit 04.06.11 at 3:19 am

Only by the standards of folk morality. No legal definition could abide by this.

Holy crap! By Folk Morality I assume you mean “the moral standards of the electorate”?

Anyway, I don’t know about the law in the USA, but in Canada, the Criminal Code speaks rather clearly on this point:

Bribery of judicial officers, etc.

119. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or

(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.

[emphasis added]

You’ll note that the offence does not require that the object of the bribe is carried out. The “in respect of anything … to be done or omitted” language means just that the bribe contemplates some act or omission on the part of the official, not that the act or omission occurs.

I can’t believe that the US doesn’t have a similar law.

119

yeliabmit 04.06.11 at 3:20 am

*Everything from “Bribery” to “[emphasis added]” in blockquotes…

120

Salient 04.06.11 at 4:02 am

Faced with the fact that Clarence Thomas has openly accepted $700,000 in bribes you assert that nobody in American politics accepts bribes.

*blink* What?

No. No, I’m not asserting that. In fact, I was the person who said I was disappointed to see that that topic had been dropped here. Like, up there * points upthread *

I think maybe you’re confusing me with Myles. Or maybe you’re not familiar with the nascent sarcastic “With notably few exceptions” meme. Either way, s’ok, bygones, rest assured I was being silly while biting my nails over election results.

…In tangentially related news, the contentious race for Supreme Court justice (in the state of Wisconsin) is still neck-and-neck and not called, with ~80% of precincts reporting in. Criiiipes.

121

David 04.06.11 at 4:15 am

Myles, the first rule when finding oneself in a hole is to stop digging. You apparently are incapable of understanding that.

122

Andrew 04.06.11 at 11:23 am

Such a litigious comment thread. No one’s been libeled. Let’s drop that.

Thomas isn’t being bribed, though as Chris and others suggested it does plausibly present an appearance of impropriety. In any event, I think one would be extremely hard-pressed to show any effect on Thomas’s rulings.

Chris @82: Only to the extent of the provable damages of the victims. What people sometimes overlook about the tort system is that it doesn’t create the damage, it only allocates it. If the tortfeasor isn’t bearing that burden, the victim is.

Yes, but the expansion of liability has implications beyond the cost of paying damages to actual victims. There is the potential cost in governments adopting rules and behavior that might limit their exposure to potential lawsuits, but also not be in the best interests of the community they serve ; there is the increased cost of defending against suits that are not frivolous, but are only questionably meritorious; and so forth.

I don’t know the answers to those questions. That might make me simply ignorant, or possessing an unreasonably high epistemological standard, but I think those questions are genuinely difficult to answer without a very full empirical investigation.

Government exists to have broad shoulders and bear burdens that would crush an individual. Contra Rand, no individual human is qualified to play Atlas. That’s why we’ve created collaborative institutions to take on tasks that are beyond the capacity of individuals.

I fully agree with this. I’m not a libertarian or an “Objectivist.” And in fact, the Cato Institute fully supports your position here.

But isn’t absolute (as opposed to qualified) immunity for the individual prosecutors judge-created in the first place? IIRC, garden-variety qualified immunity would be destroyed by malice, which seems to be present on the facts in Connick v. Thompson. All of the cases where absolute and qualified immunity produce different results are really bad standard bearers for absolute immunity (because of the facts they have to have to fit into that category): doesn’t that say something about the wisdom of retaining it?

Ironically of course if Thompson had argued the withholding prosecutor intentionally withheld the evidence when he knew it would violate a clearly held right, then Thompson would have destroyed his failure-to-train theory.

Definitely common law roots.

Scent of Violets @89: Yes, it appears Thompson is without a remedy on these facts in federal court.

123

PHB 04.06.11 at 11:33 am

Myles @ 115

No, you are libeling me with a false accusation of libel.

I can prove every word that I wrote. Ginny Thomas has admitted receiving the $700,000. That is proven beyond doubt. It is equally proven beyond doubt that the money comes from people who have issues before Clarence Thomas’ court. Ergo there are no facts at dispute and truth is a perfect defense in libel.

Since it is proven beyond doubt that he has taken the money, the only point in dispute is whether doing so is improper. This is really not a difficult question, the money is very clearly intended to influence his vote and is thus clearly a bribe.

The fact that conservatives would even attempt to justify Clarence Thomas’ bribe taking demonstrates that they are equally corrupt. As a moral question, this is not even close. $700,000 is a huge bribe by any standard.

124

MPAVictoria 04.06.11 at 12:44 pm

“a) seems the most likely. I don’t think he’s lying and I don’t think he’s a heterodox economics mind.”

Why? So basically you are calling Mr. Moore stupid because he disagrees with you. I hate to break it to you Myles but during this conversation you have:
1. Failed to understand bribery
2. Failed to understand libel
3. Claimed that being a Congressman is not considered a high office

I think your record speaks for itself.

125

ScentOfViolets 04.06.11 at 1:13 pm

Scent of Violets @89: Yes, it appears Thompson is without a remedy on these facts in federal court.

That’s still not what I’m asking. You seem to be suggesting that he is without any remedy at all, federal courts or otherwise. Is that really what you’re saying. Because if that’s true, then:

PHB @47: But as I said @33 in response to Scott’s excellent point, the case is NOT about whether Thompson is deserving of compensation (of course he is). Nor is the case about whether the law adequately provides Thompson with compensation. The legal question is much, much narrower.

doesn’t make any sense. This is nothing more, in fact, than saying that of course people have rights, they’re just routinely and uniformly violated in the sure knowledge that no penalties or compensation will ever reply. As silly as saying that everyone is actually colored green, but that it’s an invisible green that nobody can see, and as other people have already noted.

126

Uncle Kvetch 04.06.11 at 3:30 pm

Being a member of Congress in America is not, generally speaking, regarded as holding high office.

OK, I’m convinced: Myles and Sebastian are the same person.

127

james 04.06.11 at 8:23 pm

really strange fruit @97

Convention on Civil and Political Rights (CCPR) is apparently not the law of the land in the United States for domestic law. It is likely not even the law of the land for the US as applied to international law.

http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights#United_States
The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[64] Some have noted that with so many reservations, its implementation has little domestic effect.[72] Included in the Senate’s ratification was the declaration that “the provisions of Article 1 through 27 of the Covenant are not self-executing”,[73] and in a Senate Executive Report stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.”[74]
Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the U.S. judicial system is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR’s relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.

128

Dr. Hilarius 04.06.11 at 10:42 pm

“With notably rare exceptions ($90,000 in a freezer), no one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.”

Spiro Agnew. How soon we forget. Agnew might be excluded in that he took money for small, squalid things rather than for important matters but that might just have been the lack of opportunity.

129

LFC 04.07.11 at 12:09 am

really strange fruit: thanks for replying

james @127: plaintiff still could have cited CCPR as persuasive (not necessarily binding) authority. (Not that it would have changed the 5-4 outcome, of course.)

130

really strange fruit 04.07.11 at 9:54 am

Right. That painstaking effort to negate the CCPR means the reservations breach the Vienna Convention on the Law of Treaties. US domestic law does not comply with relevant international law or human rights accords. US citizens have no universal human rights. In terms of Responsibility to Protect, the judiciary is bleeding legitimacy regardless of the legal rationale.

131

Andrew 04.07.11 at 11:57 am

Scent @125: I’m not sure what you mean. I said that (1) the case was not about whether Thompson has an adequate remedy, and (2) Thompson may in fact NOT have an adequate remedy. I do not know whether he has a possible action under state law.

But there’s no contradiction between (1) and (2). Nor do they together imply that rights are frequently violated without any legal possibility of penalty. Had the prosecutor who withheld the evidence lived, I’d guess that he stood an excellent possibility of a criminal investigation and prosecution.

I do agree that in this case the law failed as a vehicle by which justice might be secured.

On Justice Thomas… yeah, the bribery accusation is silly. There is an appearance of impropriety argument, but the standard is slightly looser with the Supreme Court because, after all, there are only 9 of them.

132

PHB 04.08.11 at 10:52 pm

@ Andrew 131

There is only one President. Yet somehow I don’t think that the GOP would be willing to ignore the first lady taking $700,000 from MoveOn to lobby for progressive causes.

They would call it a bribe and they would be right.

Clarence Thomas is taking bribes. He is corrupt. It is beneath our dignity to discuss his tainted, corrupted decisions.

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